Empathy for Mass Murderers?

Today, the Senate Judiciary Committee will likely vote on whether to promote District Judge Robert Chatigny to a life-tenured seat on the Second Circuit Court of Appeals. Any citizen who expects judges to bring the most heinous criminals to justice should be seriously concerned about this nomination.

In an infamous 2005 case, Chatigny, a judge on the U.S. District Court in Connecticut, fought tooth and nail to remove a serial rapist and murderer from death row. Chatigny argued that the murderer, known as the Roadside Strangler, “never should have been convicted” and certainly should not have received the death penalty. Why? Because he was “sexually sadistic.” Yes, according to this judge, the fact that the murderer was driven by excitement at the suffering of his victims somehow makes him less culpable for the lives he took.

Here’s a quick history of the case. Michael Ross confessed to the rape and murder of eight young women. A jury determined that his actions warranted the death sentence—the first handed down in Connecticut in over 40 years. After 20 years of failed appeals by his attorneys, Ross decided to accept the sentence. Days before the scheduled execution, the public defender’s office requested a stay of the execution—against Ross’s wishes—arguing that “death row syndrome” had caused Ross to fall into suicidal despair. Chatigny granted the stay based on this strained argument. The U.S. Supreme Court did not buy Chatigny’s foray into bench-chair psychology and ultimately vacated the stay.

While the stay was pending before the Supreme Court, Chatigny granted a temporary restraining order on behalf of Ross’s father, arguing that the execution would “extinguish [the father’s] constitutionally protected bond with his son in violation of the Fourteenth Amendment in that the State will have assisted his son in committing suicide, which is a crime in itself.”

The idea that the Fourteenth Amendment somehow protects father-son bonding is novel to say the least. It is hard to say which is more preposterous: this or the notion that the state is engaging in “assisted suicide” by executing a brutal murderer who refuses to fight his death sentence. Ross was not sentenced to death because he wanted it, but because he deserved it. The Second Circuit and the Supreme Court vacated the temporary restraining order.

But Chatigny’s activism in the case did not end there. In addition to issuing judgments and orders, he actively advocated outside of the courtroom for Chatigny’s death sentence to be remanded, even bullying an attorney with threats to his legal career.

The day before Ross’s execution was to take place, Chatigny held a conference call with members of the public defender’s office and Ross’s attorney, T.R. Paulding. He demanded to know why Paulding was not taking further action and accused Paulding of being complicit at Ross’s attempt to gain “state-assisted suicide.” During the call, he threatened Paulding saying, “I’ll have your law license,” adding that, “if Michael Ross is dead, oh, boy it’s not going to be nice for anybody.”

It was during this call that Chatigny made the outrageous claim that Ross’s sexual sadism made him less culpable for his crime. Not only was he less culpable but, in Chatigny’s words, he was the “least culpable of anyone on death row.” Chatigny further asserted that Ross’s sexual sadism was “clearly a mitigating factor.” If this standard was actually applied in criminal law cases, imagine how many rapists and murderers would serve even shorter sentences than they already do.

While Judge Chatigny was later cleared of ethical wrongdoing by a panel of Second Circuit judges, this does not mean that he should have been cleared or that his actions should be forgotten. His behavior in this case raises red flags about both his temperament and his ability to be impartial.

The facts are stark. Chatigny abdicated his role as an impartial judge—not even feigning neutrality. Instead, he pursued his desired result by whatever means necessary. This sort of behavior is unacceptable for any court in the land at any level of government. Such conduct raises grave concerns about his proposed promotion to an even higher life-tenured judicial position.

Reasonable people can differ on the societal desirability of having a death penalty, but the legal questions of the Ross case were not open to reasonable debate. A capital sentence was handed down by the people and the state of Connecticut. Chatigny put his own judgment about administering the death penalty above the unanimous decision of the jury, the state legislature (which provides capital punishment as an option for the most serious crimes), the numerous state court judges who heard his direct and collateral appeals, and even—indirectly--the United States Supreme Court, which has upheld capital punishment for aggravated murders in cases like Ross’s. For Chatigny, none of that seemed to matter. He was looking for any flimsy theory to overturn the judgment.

President Obama has stated that he considers “empathy” a necessary quality for judges. This is a perfect illustration of why empathy should not be a judicial standard. If we accept that a judge may rule based on personal empathy, we must also accept that we cannot control the direction or depth of that empathy.

District courts are generally much more constrained in their actions by higher courts, as occurred in this case through multiple reversals. But this one instance is enough to show that Chatigny has a penchant for inventing bizarre constitutional rights at a whim. If he is elevated to the Second Circuit, time can only tell what rights he will create next.

Deborah O’Malley is a Research Associate in the Center for Legal and Judicial Studies at The Heritage Foundation.

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